JANET M. KRAUSE,PLAINTIFFv.PENNSYLVANIA DEPARTMENT OF MILITARY AND VETERANS AFFAIRS, DEFENDANT

The opinion of the court was delivered by: (Judge Conner)

MEMORANDUM

This is a § 1983 civil rights action filed by plaintiff Janet M. Krause ("Krause") alleging that defendant, the Pennsylvania Department of Military and Veterans Affairs, violated her due process rights under the Fifth and Fourteenth Amendments of the United States Constitution. Presently before the court is a motion (Doc. 3) to dismiss the complaint (Doc. 1) pursuant to Rule (12)(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the court will grant the motion.

The Pennsylvania Department of Military and Veterans Affairs oversees the Pennsylvania National Guard. Krause served in the Pennsylvania Army National Guard for twenty-eight years. (Doc. 1 ¶ 5). Krause maintained an exemplary service record. (Id. ¶ 11).

In January 2010, a duly constituted Qualitative Retention Board ("QRB") of the Pennsylvania Army National Guard recommended Krause for retention.*fn2 (Id. ¶¶ 5, 6). Shortly thereafter, the Pennsylvania Army National Guard dissolved the QRB because of an "alleged procedural deficiency." (Id. ¶ 7).

In February 2010, the Pennsylvania Army National Guard established a new QRB. (Id. ¶ 7). The second QRB recommended not retaining Krause despite ranking her fourteenth on a list of thirty-nine soldiers on the "E6 promotion list." (Id. ¶¶ 8, 9). This resulted in Krause's discharge from the Pennsylvania Army National Guard.

On June 3, 2011, Krause filed suit against the Pennsylvania Department of Military and Veteran Affairs in the United States District Court for the Middle District of Pennsylvania. (Doc. 1). In the complaint, Krause alleges that the Pennsylvania Department of Military and Veteran Affairs violated her due process by deviating from Army Regulation 135-209, Section IV, 2-15 ("Regulation 135-209).*fn3

On June 21, 2011, the Pennsylvania Department of Military and Veterans Affairs filed the instant motion (Doc. 3) to dismiss the complaint. The motion has been fully briefed and is ripe for disposition. (See Docs. 4, 11).

II. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests." Phillips, 515 F.3d at 232 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint in the face of a Rule 12(b)(6) motion, the court must conduct a three-step inquiry. See Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step, "the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.'" Id. (quoting Ashcroft v. Iqbal, ---U.S. ---, 129 S. Ct. 1937, 1947 (2009)). Next, the factual and legal elements of a claim should be separated; well-pleaded facts must be accepted as true, while mere legal conclusions may be disregarded. Id.; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the well-pleaded factual allegations have been isolated, the court must determine whether they are sufficient to show a "plausible claim for relief." Iqbal, --- U.S. ---, 129 S. Ct. at 1950 (citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). A claim "has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, --- U.S. ---, 129 S. Ct. at 1949. When the complaint fails to present a prima facie case of liability, however, courts should generally grant leave to amend before dismissing a complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

III. Discussion

In the instant action, Krause alleges that the Pennsylvania Department of Military and Veterans Affairs violated her due process rights under the Fifth and Fourteenth Amendments of the United States Constitution. The court finds that Krause's claim against the Pennsylvania Department of Military and Veterans ...

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